ONTARIO COURT OF JUSTICE

DATE: 2024 05 14 COURT FILE No. Central East Newmarket - 4911-998-22-91103120-00

BETWEEN:

HIS MAJESTY THE KING APPLICANT

— AND —

GARY SCHILL RESPONDENT

Before: Justice R.M. Robinson

Heard: April 8-9, 2024 Reasons for Judgment released: May 14, 2024

Counsel: Jeff Pearson......................................................................................... counsel for the Crown James Foy......................................................................................................... amicus curiae Gary Schill................................................................................................... on his own behalf

ROBINSON J.:

I – INTRODUCTION

[1] This is an application by D.C. Ernest Carmichael #1950 of the York Regional Police pursuant to s.111(1) C.C. to prohibit Gary Schill from having in his possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, for a period of five years.

[2] The Crown relies on the oral evidence of D.C. Carmichael, as well as a number of exhibits filed during the course of the hearing.

[3] The relevant portions of s.111 C.C. provide as follows:

Application for prohibition order

111 (1) A peace officer, firearms officer or chief firearms officer may apply to a provincial court judge for an order prohibiting a person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, where the peace officer, firearms officer or chief firearms officer believes on reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or of any other person that the person against whom the order is sought should possess any such thing.

Hearing of application

(3) Subject to subsection (4), at the hearing of an application made under subsection (1), the provincial court judge shall hear all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought.

Prohibition order

(5) Where, at the conclusion of a hearing of an application made under subsection (1), the provincial court judge is satisfied that the circumstances referred to in that subsection exist, the provincial court judge shall make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for such period, not exceeding five years, as is specified in the order, beginning on the day on which the order is made.

[4] Mr. Schill opposes D.C. Carmichael’s application. He did not call any evidence.

II – THE FACTS

[5] The entirety of the Crown’s case came through the evidence of D.C. Carmichael, a police officer with York Regional Police’s Tactical Intelligence Unit, a unit tasked with investigating terrorism, extremism and subversive groups.

Diagolon, Jeremy McKenzie and Mr. Schill.

[6] In August 2021, the police received a complaint from a member of the public regarding a police officer who was publicly associated with Jeremy McKenzie, a well-known extremist.

[7] Initially, D.C. Carmichael was tasked with conducting a surface level assessment of Mr. McKenzie. He quickly learned that Mr. McKenzie was a prominent podcaster under the name “Raging Dissident” with a large following. His views were vehemently anti-government and anti-authority. Mr. McKenzie was the founder and face of an organization named Diagolon.

[8] D.C. Carmichael identified two Diagolon-related Telegram [1] channels in York region. One was entitled the “North of 7 Community Safe Zone for C-19 Bigots”. The other was “York Region Bigots”, which later became “York Region Purebloods.” D.C. Carmichael was able to join the channels and monitor their activity for approximately two years.

[9] The two York region channels directly referenced Diagolon. Whenever Jeremy McKenzie posted anything or released a podcast, its contents would be shared immediately on the York-region Telegram channels.

[10] The content of the channels was anti-vaccine, anti-government, white nationalist and white supremacy rhetoric. It involved conspiracy theory discussions and talk about assembly a militia by acquiring weaponry and body armour and planning meet-ups.

[11] D.C. Carmichael identified Mr. Schill early on as an active member on the Telegram channels. Unlike others who hid behind aliases, Mr. Schill identified himself by his real name and real photograph.

[12] Mr. McKenzie, the founder of Diagolon, actively promoted “Day of the Rope”, a book about a white supremacist revolution that was based on “The Turner Diaries”, a 1978 neo-nazi novel. The books, described by D.C. Carmichael as the bible of white nationalism, recount a race war that evolves into genocide in which all non-whites, Jews and “race traitors” are lynched.

[13] D.C. Carmichael observed nazi imagery on many of the profile pictures of Diagolon members on Telegram. Their discussions included coordinating meet-ups to engage in shooting and combat-training.

[14] A photograph of one such meet-up [exhibit 1] shows a gathering of 14 individuals performing a Diagolon “salute”. Mr. Schill can be seen saluting under a large Diagolon flag.

[15] As of 28 March 2024, D.C. Carmichael was able to determine through a social media query that Mr. Schill was still following Jeremy McKenzie on Instagram.

[16] There was also evidence that Mr. Schill was in communication with Paolo Scarpelli, a close associate of Jeremy McKenzie’s, to organize Diagolon dinner parties at Mr. Schill’s residence.

Mr. Schill’s Online Activities

[17] A screenshot of one of Mr. Schill’s Telegram exchanges [Exhibit 3] reads as follows:

THOMAS RHYNO: I’m hoping one of these meet ups will bring in a range we can all shoot at THOMAS RHYNO: Clay, and steel! GARY SCHILL: I like smaller groups for shooting. And for once a group where everyone does shoot and not just for their first time trying. I want to discuss proper ways if you catch my drift THOMAS RHYNO: There’s only one way to shoot properly lol. Accurately. GARY SCHILL: Properly engage let’s say. As a group. THOMAS RHYNO: Well fuck Gary. I have ppl over all the time you should come.

[18] A screenshot of another exchange [exhibit 4] reads:

THOMAS RHYNO: Should train first aid, PT, firearms, tactics, shooting 25-100m, bushcraft. DREW: [includes picture of body armour plate] This is what we use. I’m friends with the guys and I’ll see if I can get you a discount code or something. GARY SCHILL: Should we take this to private dms or in person? They will accuse us of building a militia [sic]. ROSE Z: Good morning everyone. Just catching up on all convos… definitely interested in training. THOMAS RHYNO: Maybe lol… I’m over it! DREW: Nothing is illegal about sharing a link of a legal product. Now, if we got together and trained and worked on tactics and procedures… might be a different story

[19] The image that “Drew” included was of “Threat Level: IV” body armour ceramic plates. D.C. Carmichael testified that Level IV was the maximum level of body armour, capable of stopping the highest calibre of ammunition. It is the level worn by the military and by the Emergency Task Force. By comparison, York Region Police typically wear Level II body armour.

[20] A screenshot from another exchange [exhibit 7] reads as follows:

GARY SCHILL: I’m interested for sure. I keep looking at carriers but can’t decide what to get. DREW: Well depends on whether you’re going to get plates or not. GARY SCHILL: We have to come to realize this country has been invaded and the enemy is not at the door bit [sic] inside. I want to be protected against mil spec at least. Level 4.

[21] With respect to Mr. Schill’s apparent desire to purchase Level IV body armour, Mr. Foy points out that it is not illegal to own body armour; and there is no evidence that Mr. Schill ever actually purchased any.

[22] In yet another exchange [exhibit 6], Mr. Schill posted a picture of the House of Commons and added the following caption:

GARY SCHILL: That wood looks nicely aged to burn well.

[23] On both York-region channels, a poster was circulated that stated “Bigots United presents: Freedom Fighters. York Region Meet and Greet” [exhibit 5] and included the time and location of the meet-up. The poster included the silhouette of an individual in full military gear with a rifle over his/her shoulder.

[24] There was no evidence that Mr. Schill actually attended the Freedom Fighters meet-up. Other than the meet-up captured in exhibit 1, there was no evidence that Mr. Schill actually attended other meet-ups. There was, however, evidence that Mr. Schill and Paolo Scarpelli were attempting to organize Diagolon dinner parties.

Domestic Charges and Search Warrant

[25] In April 2022, Mr. Schill was arrested for a domestic assault against his then-wife, Jennifer McNeil. The allegation was that Ms. McNeil assaulted Mr. Schill and he responded by choking her to the point that she urinated herself. It was Mr. Schill who called the police to attend. As a result, Ms. McNeil was charged with assault and Mr. Schill was charged with assault causing bodily harm.

[26] In her statement to the police, Mc. McNeil confirmed that Mr. Schill was a Diagolon member who spends a lot of time on-line with like-minded people. She advised that Mr. Schill is moderator of a Diagolon live stream. She further advised that Mr. Schill was recruiting ex-military members on behalf of Diagolon for the purpose of building a militia.

[27] Shortly after Mr. Schill received his disclosure on the domestic charges, excerpts from it were posted on Jeremy McKenzie’s blog on Substack, an online platform.

[28] The domestic charges were eventually withdrawn against both Ms. McNeil and Mr. Schill. Mr. Schill has never been charged with terrorist-related activities.

[29] When the charges were laid, police obtained and executed a search warrant on Mr. Schill’s residence. They located firearms that Mr. Schill legally owned, as well as a “huge amount” of ammunition with “multiple buckets of loose rounds” in Mr. Schill’s re-load station [2] in his garage. The items included many boxes and loose rounds of 9 mm ammunition, 5.56 mm rifle ammunition, .223 ammunition, 6.5 x 55 mm ammunition, .303 inch ammunition, 12 gauge shotgun shells, 7.62 mm ammunition, .30-30 ammunition, .22 mm ammunition, .45-70 ammunition, .303 British ammunition, bottles of gun powder, smokeless gun powder, primers, magazines, a Freedom Ordnance a firearm, a Marlin Firearms 45-70 rifle, a crossbow, crossbow darts and cash. Although not an expert in ammunition, based on his experience as a police officer and in the military, D.C. Carmichael was able to say that a lot of the ammunition located was not compatible with the firearms that Mr. Schill legally owned.

[30] In the toolbox next to Mr. Schill’s re-load station, the police located a large nazi flag with a swastika and iron cross on it. While no nazi imagery was observed on Mr. Schill’s social media, D.C. Carmichael noted that at one point, Mr. Schill shaved his mustache and combed his hair so as to resemble Adolf Hitler.

[31] Also in the area of the re-load station, the police located a hand-drawn diagram that depicted a cube van stealing gas from a closed gas station.

[32] Mr. Schill’s communication devices were seized and analyzed. The analysis revealed direct communication between Mr. Schill and Jeremy McKenzie.

[33] D.C. Carmichael testified that he reviewed surveillance reports regarding Mr. Schill and took part in surveillance himself on many occasions. Two Diagolon stickers have been observed on Mr. Schill’s SUV, including one that was recently added.

Ottawa Freedom Convoy

[34] In early 2022, law enforcement became concerned about Diagolon’s attendance at the Freedom Convoy in Ottawa because of Jeremy McKenzie’s rhetoric about civil war and the desire to overthrow the government. A rallying cry of Diagolon was “gun or rope”, an apparent reference to giving the enemy the choice of execution by shooting or lynching.

[35] Photographs were taken at a Diagolon inner circle meeting just outside of Ottawa around 30 January 2022 [exhibits 12 and 13]. Mr. Schill was captured in attendance in one such photograph. At that gathering, Jeremy McKenzie stood up on a table to address the crowd. He identified himself as Diagolon’s leader and said “all my favourite people are here”, mentioning Mr. Schill specifically by name. Mr. McKenzie concluded the speech by stating, “there will not be any fucking surrendering as long as I am around.”

Coutts Blockade

[36] Also in early 2022, several people were arrested at the blockade at the Alberta-Montana border in Coutts, Alberta, for an alleged plot to murder RCMP officers.

[37] As a result, a large number of weapons, a large amount of ammunition and ballistic vests were seized. Diagolon patches were prominently displayed on one such ballistic vest.

[38] One person arrested was Chris Lysak, who Jeremy McKenzie referred to as the head of security for Diagolon.

Report of the Public Inquiry into the 2022 Public Order Emergency

[39] In February 2023, a report was released by the Honourable Paul S. Rouleau, Commissioner of a public Inquiry into the declaration of a Public Order Emergency issued by the federal government in 2022.

[40] The Report noted that “[l]aw enforcement and intelligence agencies view Diagolon as a militia-like extremist organization.”

[41] The Report further found that:

Diagolon may have started as a joke on Mr. McKenzie’s podcast, but it has grown into a larger community. The Royal Canadian Mounted Police (RCMP) has described Diagolon as a militia-like network with members who are armed and prepared for violence. In his testimony, the head of the Ontario Provincial Police (OPP) Intelligence Bureau described Diagolon as an extremist group… I am satisfied that law enforcement’s concern about Diagolon is genuine and well founded. The fact that a ballistic vest that was seized by the RCMP during the protests in Coutts – along with numerous guns – bore a Diagolon patch suggests as much.

[42] Notwithstanding the findings of the Commission, Mr. Foy points out that Diagolon is not currently listed as a terrorist entity on Public Safety Canada’s list of domestic terrorist groups.

III – LEGAL PRINCIPLES

[43] Under s.111 C.C., a police officer may seek a pre-emptive firearm prohibition order from a judge of the Ontario Court of Justice. The purpose of the pre-emptive order is to “remove, or to prevent the acquisition of firearms from those members of the population who have committed offences, or who it may be reasonably anticipated may commit an offence.” [3]

[44] The section requires the officer to believe on reasonable grounds that it is not desirable in the interests of the safety of the respondent or any other person that the respondent should possess firearms.

[45] At the hearing of the application under s.111(3) C.C., the judge must be satisfied on a balance of probabilities [4] that there are reasonable grounds to believe that, for the reasons stated in s.111(1) C.C., it is not desirable for the respondent to possess firearms. The judge “thus confirms the existence of the reasonable grounds which led the peace officer to launch the application.” [5]

[46] In determining what constitutes “not desirable”, the judge is guided by the criteria set out in s.5(2) and (2.1) of the Firearms Act, S.C. 1995, c.39, which provide that:

Criteria

5 (2) In determining whether a person is eligible to hold a licence under subsection (1), a chief firearms officer or, on a reference under section 74, a provincial court judge shall have regard to whether the person

(a) has been convicted or discharged under section 730 of the Criminal Code of (i) an offence in the commission of which violence against another person was used, threatened or attempted, (ii) an offence under this Act or Part III of the Criminal Code, (iii) an offence under section 264 of the Criminal Code (criminal harassment), (iv) an offence relating to the contravention of subsection 5(1) or (2), 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act, or (v) an offence relating to the contravention of subsection 9(1) or (2), 10(1) or (2), 11(1) or (2), 12(1), (4), (5), (6) or (7), 13(1) or 14(1) of the Cannabis Act;

(b) has been treated for a mental illness, whether in a hospital, mental institute, psychiatric clinic or otherwise and whether or not the person was confined to such a hospital, institute or clinic, that was associated with violence or threatened or attempted violence on the part of the person against any person;

(c) has a history of behaviour that includes violence or threatened or attempted violence or threatening conduct on the part of the person against any person;

(d) is or was previously prohibited by an order — made in the interests of the safety and security of any person — from communicating with an identified person or from being at a specified place or within a specified distance of that place, and poses or could pose a threat or risk to the safety and security of any person;

(e) in respect of an offence in the commission of which violence was used, threatened or attempted against the person’s intimate partner or former intimate partner, was previously prohibited by a prohibition order from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition; or

(f) for any other reason, poses a risk of harm to any person.

For greater certainty

(2.1) For greater certainty, for the purposes of paragraph (2)(c), threatened violence and threatening conduct include threats or conduct communicated by the person to a person by means of the Internet or other digital network.

[47] However, section 5 of the Firearms Act is a guideline that is not exhaustive. In British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343, the British Columbia Court of Appeal held that:

There are many other things a firearms officer or a judge might consider that do not fit into s.5(2) and that might logically and reasonably give rise to valid safety concerns... The firearms officer and the judge are entitled to consider anything about the background or conduct of the applicant or licence holder that is relevant to public safety. [6]

[48] Subsequently, in R. v. Christiansen, 2006 BCCA 189, the British Columbia Court of Appeal confirmed that “there can be a firearms prohibition without criminal conduct, a history of real or threatened violent behaviour or a documented mental disorder that leads to violence.” [7]

[49] A number of cases decided in Ontario have held that it is not necessary for the judge to conclude that it is more likely than not that the respondent will use the weapons to injure himself or others. Rather, “[i]t is sufficient if there is a finding that there in fact exist legitimate concerns that the respondent lacks the responsibility and discipline the law requires of gun owners.” [8]

[50] Hearsay evidence is admissible at a hearing under s.111(3) C.C. provided it meets the low threshold of relevance. In considering its weight, the judge must scrutinize the evidence to ensure that it is credible and trustworthy. [9]

[51] The assessment of whether or not it is desirable for Mr. Schill to possess firearms must be made in the present tense; it is not to be made on the basis of the date on which the events giving rise to the application occurred, or the date on which Mr. Schill’s firearms were seized. [10]

IV – ANALYSIS

[52] I have no difficulty finding that D.C. Carmichael subjectively believed that it was not desirable, in the interests of public safety, for Mr. Schill to possess firearms. Based on his experience as a police officer and the information before him, I accept that D.C. Carmichael’s belief was genuinely held.

[53] The real issue is whether D.C. Carmichael’s subjective belief was objectively reasonable.

[54] In assessing the objective reasonableness of D.C. Carmichael’s subjective belief, three points bear repeating.

[55] First, “not desirable” has been interpreted by the Ontario Court of Appeal to mean “not advisable.” [11] The requirement affords a measure of flexibility without impermissible vagueness.

[56] Second, although s.5(2) and (2.1) of the Firearms Act provides a framework, it is not exhaustive. In other words, a firearms prohibition does not require criminal conduct, a history of actual or threatened violence, or a history of mental health issues suggestive of a potential for violence [12]. As the ultimate question is one of public safety, I am entitled to consider anything about the background and conduct of Mr. Schill that is relevant to public safety [13].

[57] Third, in the analogous circumstances of a s.117.05 forfeiture hearing, the Ontario Court of Appeal has held that the assessment is to be conducted in the present tense. [14] This principle was recently applied by Justice Fiorucci in a s.111 hearing. [15]

[58] What this latter point means is that I am to consider whether the subjective belief of D.C. Carmichael (held in November 2022 when he filed the application) is objectively reasonable in the present tense.

[59] Mr. Foy argues that, while the Commission Report may be credible and reliable, it is not relevant to the legal question of D.C. Carmichael’s reasonable grounds. I am unable to agree, given the decision in R. v. Peacock-MacDonald.

[60] If an officer filed a s.111 application based on a perceived threat of violence of a respondent toward his spouse, but some time before the hearing there was actual violence against the spouse, it would defy common sense to disregard this material development, given the ultimate question is one of public safety.

Objective Assessment

[61] There is ample evidence before me that Mr. Schill holds white supremacist views. As distasteful and reprehensible as I consider his beliefs to be, that alone does not provide an objective basis for imposing a firearms prohibition order.

[62] However, that is not the extent of the evidence considered by D.C. Carmichael and adduced before me.

[63] There is clear evidence of Mr. Schill’s close affiliation with Diagolon and its founder, Jeremy McKenzie.

[64] The views of Jeremy McKenzie and his creation, Diagolon, can properly be described as anti-government and anti-authority, promoting the assembly of a militia to overthrow or, at the very least, actively resist the government.

[65] Mr. Pearson invites me to make a finding that Diagolon is a “terrorist group” as defined in s.83.01 C.C.. It is unnecessary for me to do so.

[66] Rather, it is sufficient – and permissible – for me to rely on the Commission Report’s findings that Diagolon is a militia-like extremist organization consisting of members who are armed and prepared for violence. I concur with the Commission’s finding that law enforcement’s concern about Diagolon is genuine and well-founded.

[67] Apart from the Commission’s findings, the evidence before me reasonably supports a valid public safety concern about the activities and members of Diagolon.

[68] Viewed cumulatively, there is cogent evidence that situates Mr. Schill in the inner ideological circle of Diagolon and close to its founder, Jeremy McKenzie. There is also cogent evidence of Mr. Schill’s intention to engage in the type of illegal activity espoused by Diagolon. For example:

(a) Mr. Schill’s devices show direct communication between him and Mr. McKenzie; (b) Mr. Schill remains a follower of Mr. McKenzie on Instagram; (c) Mr. Schill was an active participant on Telegram’s Diagolon channels based in York Region; (d) Mr. Schill was observed in attendance at a Diagolon meet-up, where he was photographed giving the Diagolon salute under the Diagolon flag; (e) Mr. Schill was actively engaged in organizing Diagolon meetings with Paolo Scarpelli, a close associate of Jeremy McKenzie; (f) Mr. Schill’s wife provided evidence that he was attempting to recruit ex-military members to build a militia; (g) Mr. Schill’s Telegram posts can reasonably be interpreted as an attempt to organize tactical shooting and combat training outings; (h) Mr. Schill’s posts about attempting to acquire Level IV body armour and his desire to be “protected against mil spec” suggests active resistance against the government and not merely protection; (i) Mr. Schill’s use of guarded language (e.g. “catch my drift” ) seems to confirm the illegal objective of the posts; (j) Mr. Schill’s post about the House of Commons is clearly a reference to burning down Parliament; (k) Mr. Schill was part of the inner circle Diagolon meeting on the outskirts of Ottawa during the Freedom Convoy; (l) At the meeting, in which Jeremy McKenzie personally acknowledged and thanked Mr. Schill, Mr. McKenzie’s parting words were “there will not be any fucking surrendering as long as I am around;” (m) Mr. Schill’s garage contained a re-load station in which he stored “huge amounts” of ammunition, not all of which was compatible with his lawfully-owned firearms; and (n) In that same re-load station, Mr. Schill had a hand-drawn sketch of what can only be interpreted as a plan to engage in criminal activity at a closed gas station.

[69] I find that the subjective belief of D.C. Carmichael is objectively reasonable. As a result, the statutory criteria in s.111(1) C.C. are met.

V – CONCLUSION

[70] The animating principle in the Firearms Act and the firearm-related provisions of the Criminal Code is public safety. Indeed, the Supreme Court of Canada has noted that the possession of firearms is a highly regulated activity for good reason; that gun ownership is a privilege, not a right. [16]

[71] The totality of the information before me satisfies me that it is more likely than not that Mr. Schill poses a significant public safety concern.

[72] Given the nature and scope of this public safety concern, I decline to limit the term of the prohibition order or to carve out an exception for cross-bows.

[73] Mr. Schill is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, for a period of five years.

Released: May 14, 2024 Signed: Justice R.M. Robinson

[1] Telegram Messenger is a cloud-based, encrypted instant messaging service with its servers located overseas.

[2] D.C. Carmichael described the re-load station as a workshop in the garage where Mr. Schill made his own ammunition.

[3] R. v. Zeolkowski, 1989 SCC 72, [1989] S.C.J. No. 50, at para 12.

[4] R. v. Zeolkowski, 1989 SCC 72, supra, at para 17.

[5] R. v. Zeolkowski, 1989 SCC 72, supra, at para 16.

[6] British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343, at para 25.

[7] R. v. Christiansen, 2006 BCCA 189, at para 7.

[8] R. v. Bokhari, 2009 ONCJ 691, at para 10, relying on R. v. Day, [2006] O.J. No. 3187 (S.C.J.) and R. v. Morgan, [1995] O.J. No. 18 (Ont.Ct.(Prov.Div.)).

[9] R. v. Zeolkowski, 1989 SCC 72, supra, at para 18.

[10] R. v. Peacock-McDonald, 2007 ONCA 128, at para 40; R. v. Douglas, 2013 ONCJ 649, at paras 45, 57; R. v. Mourtzis, 2015 ONCJ 74, at para 25; R. v. Roman, 2018 ONCJ 344, at para 89.

[11] R. v. Hurrell, 2002 ONCA 45007, [2002] O.J. No. 2819, at para 48.

[12] R. v. Christiansen, 2006 BCCA 189, supra, at para 7.

[13] British Columbia (Chief Firearms Officer) v. Fahlman, 2004 BCCA 343, supra, at para 25.

[14] R. v. Peacock-McDonald, 2007 ONCA 128, supra, at para 40.

[15] R. v. Roman, 2018 ONCJ 344, supra, at para 89.

[16] R. v. Wiles, 2005 SCC 84, at para 9.